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Seibutis v. Smith

OPINION FILED MAY 1, 1980.

BARBARA SEIBUTIS, PLAINTIFF-APPELLANT,

v.

KIRBY SMITH, DEFENDANT-APPELLEE. — (NICHOLAS T. PASCHALIS ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES TRAINA, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Barbara Seibutis, filed this action in the circuit court of Cook County against defendants, Kirby Smith, Nicholas T. Paschalis, and Peter J. Hartney, for personal injuries arising out of an automobile accident. Before trial defendants Paschalis and Hartney were dismissed from the suit and the case went to trial against defendant Smith. The jury returned a verdict in favor of Smith, and from the judgment entered on that verdict, the plaintiff appeals.

On appeal, plaintiff contends the trial court committed reversible error by: (1) refusing plaintiff's instruction defining the rescue doctrine; (2) allowing defendant to impeach two of his own witnesses, Paschalis and Hartney, under Supreme Court Rule 238 (Ill. Rev. Stat. 1977, ch. 110A, par. 238); and (3) refusing to grant a mistrial when defendant cross-examined plaintiff as to her father being a lawyer.

We reverse and remand for a new trial.

The evidence discloses that shortly before 1:30 a.m. on July 29, 1973, Nicholas Paschalis was driving southbound on Illinois Route 53 when his car developed engine trouble and stalled in the center lane of the three-lane highway. Paschalis remained in his vehicle and repeatedly tried to restart it. The night was clear and very dark and no street lights were anywhere near the scene of the stall. The testimony presented at trial conflicts as to whether Paschalis left his car lights on or turned them off.

The stall occurred a little more than one-tenth of a mile south of where Route 53 crosses over Kirchoff road. Route 53 rises as it approaches this overpass and then declines on the other side, so that a driver approaching the Paschalis vehicle would first see it when he reached the top of the overpass — assuming Paschalis had left his car lights on.

Plaintiff's first witness was defendant Smith, who testified as an adverse party under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). He said that at 1:30 a.m. he was driving south on Route 53 in the center lane approaching the Kirchoff Road overpass at a speed of 60 miles per hour in a 65-mile-per-hour zone. His lights were on low beam. With him was one passenger, Thomas Murphy. Smith said he had been following another car driven by Kathleen O'Donnell, a friend. Smith lost sight of her car just prior to reaching the overpass. Shortly after Smith crossed the overpass he saw a "reflection" off the tail-lights of the Paschalis vehicle and realizing it was stalled he immediately attempted to turn into the right lane. As he did so he saw a woman, whom he believed to be O'Donnell, standing in that lane. He quickly turned back into the center lane, applied his brakes, and then collided with the rear of the Paschalis vehicle. Both Smith and Murphy were injured in the collision, but not too seriously. The trial record does not indicate if Paschalis was harmed. Smith said he immediately got out of his car and went to seek help. Murphy stayed in the car.

Craig Scofield, called by plaintiff, testified that just prior to the accident he was entering Route 53 from the Kirchoff Road entrance ramp which merges with Route 53 near where the Paschalis vehicle was stalled. As Scofield traveled along the entrance ramp, he looked over his shoulder and saw two cars at the top of the overpass. When Scofield reached the point of merger, he momentarily saw the Paschalis vehicle and passed to the right of it. He said the Paschalis vehicle's lights were on. After passing the Paschalis vehicle, Scofield again looked over his shoulder and saw the Smith vehicle strike the Paschalis vehicle. At no time did Scofield see anyone standing on the highway. After the collision, Scofield pulled off on the right shoulder of the highway. He said the second car he had seen at the top of the overpass pulled off behind him.

Plaintiff testified that sometime after 1 a.m. on the day of the incident she was driving south on Route 53. She had five passengers in her car. As she reached the overpass over Kirchoff Road, plaintiff saw that an accident had occurred up ahead and she suggested to her passengers that they stop and help. Plaintiff pulled off onto the right shoulder just past the scene of the accident. Plaintiff, with two of her passengers, went up to the driver's side of the Smith vehicle, which was still in the center lane, and there she saw a woman (O'Donnell) standing by the driver's door talking to a passenger (Murphy) who was slumped over in the front seat. At this time plaintiff was standing in the left lane of the highway. Plaintiff then turned to tell one of her companions to go call an ambulance, but before she could do so she was struck by a car. Other testimony showed that the car which struck her was driven by Peter Hartney and that it also struck three other people standing near the Smith vehicle, killing one of them, O'Donnell.

During defendant's presentation of his case, defendant read into the record, in the presence of the jury, the evidence deposition of Hartney. Hartney testified that he was driving south in the center lane on Route 53 at 60 miles per hour when he reached the overpass and saw the tail-lights of one vehicle up ahead. He continued to drive at 60 miles per hour, not realizing that an accident had occurred up ahead until he was 60 feet from the scene of the accident. At that moment he hit his brakes and swerved, but it was too late, and he struck four pedestrians who were standing near the Smith vehicle.

Defendant called Nicholas Paschalis as his own witness. Paschalis testified his car stalled and that while he was attempting to restart it he was struck in the rear. At one point in the direct examination, defense counsel asked Paschalis if he had turned off his car lights before trying to restart his engine. Paschalis answered that he had left his lights on. At this point defense counsel asked for a conference and one was held in chambers, outside the presence of the jury. In chambers, defense counsel alleged he was surprised by Paschalis' answer. Defense counsel claimed that Paschalis had told a State trooper, after the accident, that he had turned his lights off. Defense counsel then requested that he be allowed to impeach Paschalis as a hostile witness under Supreme Court Rule 238 (Ill. Rev. Stat. 1977, ch. 110A, par. 238). Plaintiff's counsel insisted that defense counsel's claim of surprise was unfounded. The trial record shows that a deposition had been taken of Paschalis prior to trial and that both plaintiff's and defendant's counsel had a copy of this deposition. In his sworn deposition, Paschalis had testified that he had left his lights on. The trial court ruled that Paschalis could be impeached under Rule 238. The trial court did not allow such examination on the basis that the defendant was surprised by the testimony, but instead ruled that impeachment would be allowed because Paschalis had once been a defendant in the case and because Paschalis had a language problem — the record indicates Paschalis sometimes answered questions in broken English, but there is nothing indicating that he misunderstood the questions or was unsure of his manner in answering them.

When the trial continued, defense counsel proceeded to lay his foundation for the impeachment of Paschalis. Defense counsel asked Paschalis if he had told the State trooper his lights were turned off. Paschalis admitted talking to the State trooper but insisted that he had always said his lights were left on.

As his final witness, defendant called State trooper Kochajkiewicz. He testified that after the accident he had been one of the officers dispatched to the scene and that he had taken a statement from Paschalis. He asserted that Paschalis told him that he had turned off his lights when his car stalled.

Based on instructions submitted by plaintiff, the jury was asked to find that defendant Smith was negligent in not avoiding a collision with the Paschalis vehicle, that such negligence created a situation inviting rescue, and that such negligence was the proximate cause of the injuries to the plaintiff who was injured in the attempt to effect a rescue. The jury returned a verdict for defendant, though ...


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